The UK Court of Appeal has ordered a retrial of a trademark battle between Marks & Spencer and Interflora, in a case that has been crucial with regard to the use of third party’s trademarks as keywords in pay per click advertising. An unusual move.
The case dates back to 2008 when Marks & Spencer used the advertising keyword “Interflora” in its online campaigns, the trademarked name of a competitor. This was in line with a change in policies in 2008, enabling brands to bid on competitor’s trademarks as search keywords.
If the retrial finds in favour of M&S, bidding on a competitor’s trademark could become even more liberal. However, Interflora at the time argued the move infringed its trademark rights. Because the business is comprised of a network of independent florists, it argued consumers searching for Interflora online might wrongly suppose that M&S was part of the company.
After a legal battle of over five years, the High Court ruled in favour of Interflora, stating that the “average consumer” might presume Marks & Spencer was part of the Interflora network when it appeared in the search results.
However, this week the Court of Appeal criticised the judge’s reliance on the concept of “initial interest confusion”, which enabled him to come to the decision.
The decision in the retrial is very important, as the pay-per-click advertising sector is a multi-billion euro business.